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Thursday, August 9, 2018

The Least Secretive Of Nations Is The Strongest Of Nations Update-2

Originally Published October 28, 2013; Last Updated August 09, 2018; Last Republished August 09, 2018:

Our government's unmeasured and unconstrained psychotic pursuit of secret surveillance initiatives undermines and threatens both our democracy and its foundational First Amendment.

Only after the intervention of a courageous young whistleblower-leaker, competitive China and cantankerous Russia has some of our government's representatives begun to acknowledge that our government's secret surveillance initiatives require constraints.

Our government representatives' acknowledgement that its secret surveillance initiatives require constraints is a good beginning. However, the acknowledgement must be coupled with government transparency, significant whistleblower-leaker reforms and inviolable reporter shields, but that will require the intervention of our increasingly concerned citizenry.

...our intelligence community (IC) is making incremental progress at a slow rate towards more transparency...but like the mythical vampire our IC will not naturally seek sunlight...or as we might say today seek treatment for an irrational photophobia (all light)...

...our courageous whistleblower-leakers and press have played a vital role in that progress and deserve protection...the usage of today's espionage laws is not unlike the usage of yesterday's sedition laws...oh wait today's espionage laws are yesterday's sedition laws!...

More interesting than "waiver analysis" is "public domain analysis" which is not concerned with our government's motives or rationale with respect to information in the public domain or worse pretend that it can withhold, withdraw, recall, or reclassify information in the public domain.

"They all cowered silently in their places, seeming to know in advance that some terrible thing was about to happen." —George Orwell, Animal Farm—

The Dean of Harvard Kennedy School, Douglas W. Elmendorf gets it wrong when confronted with the relatively simple call of supporting our First Amendment or cowering under a government threat or intimidation—honorific isn't the word that comes to mind when thinking of Harvard!†

† Other higher educational institutions are failing to make sure our First Amendment receives robust support, usually citing a variety of familiar "security impediments" to on campus appearances by controversial or deplorable speakers.

We arrest violent anarchists masquerading as modern-day Antifa or self-appointed saviors of our democracy, not cite them as justification for cancelling the on campus appearances by controversial or even deplorable speakers.

The standard for inviting on campus speakers is not whether those speakers will arouse sufficient passions such that it interferes with law enforcement's ability to stand around talking on their cellphones or will need overtime.

It is unclear why our governments persist with its opaque ways of governing, which contumeliously dares our citizenry to inform themselves, understand issues, or provide meaningful and timely feedback to their representatives!

National security is not a justification for opaque governance, but a source and method of ensuring and assuring open (i.e. transparent) governance.

Our government is taking nano-steps to increase transparency after it completely destroyed its credibility on the issues of "secrecy and surveillance".

Illegally querying an estimated 5% of collected upstream intelligence is astonishingly irreconcilable with all notions of democracy, privacy, government responsibility or restraint.

The ongoing debate over renewal of FISA Section 702 presents an opportunity to step up our government's transparency game on issues of "secrecy and surveillance". Restoration of its credibility on issues of "secrecy and surveillance" is more difficult and problematic.

The clear befuddlement about leaks, classification, declassification, secrecy, and transparency show our leaders will not soon be openly governing our nation and citizenry.

It's unclear whether the FBI and the senator from Nebraska are asserting or implying that there is no First Amendment value in intelligence porn or that intelligence is porn or they know intelligence porn when they see it or ...?

What our intelligence community thinks about leaks is predictable and thus has little useful information. Contrarily, information, which helps our government learn how to govern transparently is infinitely more useful.

A government, official or agency that perceives itself a target of an open, free, and independent press will generally perceive that open, free, and independent press as hostile, usually in private.

The irony of our CIA publicly declaring the anti-secrecy Wikileaks platform a hostile intelligence agency is rich, to say the least. Although, it's disquieting to hear an intelligence official express dismay that governments would use a quasi-anonymous anti-secrecy platform as a cheap and efficient way to run propaganda campaigns!?

As our "new" alt-white-house and self-declared omniscience oracle demonstrates, sometimes you love anti-secrecy and sometimes you don't. Our "new" alt-white-house is Exhibit A for an open, free, and independent press or in newspeak "the enemy of the people"!

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Governments, officials, and agencies on the right side of history will quickly learn how to govern openly and transparently instead of publicly declaring war on an open, free, and independent press.

You might suppose our successive governments could or would learn to lessen their pathological addiction to secrecy and mass surveillance. You'd be wrong, because, we're continuously and fervently told "their government" is "different" or "exceptional"11.

Those familiar with our nation's reasoned and unreasoned responses to perceived threats do not doubt its propensity for imbalanced and unbalanced overreactions. Rarely, if ever are these overreactions endogenously self-correcting in the opaque systems of national security secrecy.

The current processes (e.g. NSA minimization and FISA etc.) are neither endogenous nor self-correcting and amount to little more than gobbledygook and hocus pocus.10

Sorting through the Snowden aftermath (NSA leaks) will likely prove difficult or impossible for many years? Our government has determined a priori that our citizenry has not been "cleared" and does not have a "need to know" the information required for any meaningful analysis and debate! Fortunately, such drivel from our intelligence communities is often being met by our citizenry's increasingly vociferous demands for government transparency.

General Michael Hayden makes a strong case for pardoning Snowden and other NSA whistleblowers when he states:

"...it will take years, if not decades for us to return to the position we had prior to his disclosure..."

Notwithstanding the House of Representatives' letter, our nation must never return to place before the Snowden disclosures. Our nation must lead in field of transparent governance, not just lecture others on the subject!

Australia and other opaque governments, including the United States often use non-disclosure agreements, which include draconian penalties to coerce compliance with their policies of opaqueness, even in the face of the most infandous harm. The rule of law demands that government non-disclosure agreements, which hide infandous harm are void ab initio.

The burdens of such a program are likely to far outweigh any benefits (mostly imagined). Our universities must not be required to get a license from some anonymous military officer at the political desk of our State Department to teach students computational biology or any other subject or conduct laboratory experiments.

Just another dangerous and mischievous form of watch listing more indicative of fascist and dictatorial forms of governments than a leading democracy.

The most important and interesting part of this leaked data and whistle-blowing story has not yet been told—law firm Mossack Fonseca's et al. assertion that what they've been doing is legal—sound familiar?

Mr. President, "healthy skepticism" of trust in our government, really? How about catastrophic collapse of trust in our government! Your SXSW appearance may be necessary, but grossly insufficient to repair the rapidly diminishing trust in our government.

Absolutist's logic is not required to decry any model that eliminates our citizenry's personal privacy based on outlier events.

It is useful to recall that pursuit of absolute encryption for personal privacy, if achievable, is likely potentiated and propelled by our government's propensity for unconstrained, unaccountable, unmeasured, or unconstitutional action.

Stated differently, Mr. President our FBI lost the current Apple encryption debate before it began.

"Should governments be able to access [all] information at all or should they be blind, that's essentially what we are talking about," he told the BBC.

Like all complex policy questions balanced responses are rarely binary; it depends on the competing interests.

Surely, our government (all three branches) must be completely disabused of any notions that it can chant what it considers talismanic words like "terror" or "national security" or "grave danger" or "existential threat" or "capable of chewing through hydraulic hoses" or "[fill in your favorite secret, undisclosed or unsubstantiated hyperbole]" entitles it to (un)conditional access to any information.

Law enforcement should never be ashamed to inform any victim(s) that they pursed all investigative leads as far as conflicting and competing public policy, interests, as represented by the law permitted.

How soon before, our duplicitous and now pouting proponents of secrecy, through their spokesperson(s) over at our FBI transparently inform our citizenry in court filings that anyone not cowering when confronted with the government's talismanic words "national security" has blood on their hands?

How ironic that our government now seeks to rely on transparency and the law in its "fight against terrorism"—after our duplicitous proponents of secrecy effectively shredded all government trust and credibility.

Oversight of our intelligence community cowboys, who tend to think any schemes they dream up are acceptable, provided they attach the talismanic phrase "national security", requires much more than terminating one unconstrained, unaccountable, unmeasured, and unconstitutional program.

Unsurprisingly, some individuals in our intelligence components cite strong encryption for the inability to provide timely terrorist related data, which some individuals in our government seek ... wonder if these individuals are trying to govern using with an obsolete model?

...using an obsolete model to pursue counter (or defeat kill if you're a congressional religious zealot) those using an obsolete model—it would be hilarious absent the created carnage.

"The court reverses the judgment of the district court, and for the reasons stated in the opinions of Judge Brown and Judge Williams orders the case remanded to the district court. (Judge Sentelle dissents from the order of remand and would order the case dismissed.) The opinions of the judges appear below after a brief explanation of why the case is not moot."

Powerful pinchers are likely required when challenging a government's whose practices have become unconstrained, unmeasured, and unaccountable. Particularly when that government has intentionally made those practices opaque by assertions of national security.

Our government is likely incapable of governing transparently, which a public interest defense implies7.

A primary objective, if not the primary objective of our dysfunctional, if not defunct "classification system" is to obviate all public interest justification!

Hell, it's likely that "repurposing" the entire NSA's computational capacity to, say, computational biology is more in the public interest than collecting and analyzing signals intelligence from terrorists and other religious-wackos?

Mr. President, we're not surrendering tools for tracking terrorists. We're demanding transparent and knowledgeable debate, which objectively demonstrates that our government is continuously utilizing a minimally effective set of tools that our citizenry have knowingly authorized. Not any set of tools which an unconstrained, unmeasured, and unaccountable national security community can dream up or imagine might possibly be useful for tracking terrorists.

It's unfortunate that our national security community has behaved with such recklessness that it has jeopardized, if not entirely forfeited all its credibility.

Yet, another "national security plea" is unlikely to restore that lost credibility.

Governing transparently will not be easily advocated, mastered, or practiced by proponents of opaque governance. Ironically, these same proponents are some of our most strident advocates of democracy!?

“How could anyone think the bulk collection program would remain secret? ... It’s
not that there no longer can be national security secrets, ... the idea that the broad rules
governing your activities —not specific operations, but the broad
rules can be kept secret is a delusion. And they should not be kept
secret.” --Joel Brenner, Former Inspector General, NSA--

Any national security secret should be rare, require extraordinary justification, and of minimal duration measured in hours and days, not months and years.

Unfortunately, during periods of perceive or declared exigent circumstances (e.g. national application of force or one of our numerous quasi-wars) our appellate courts suffer a self-induced ignorance until the exigency subsides.

Fortunately, our appellate courts eventually restore, return or revert to the rule-of-law.

Much future research and study will be required to understand this transition? To date our government's "research and study" appears to consist of superficial and self-serving accusations focused at leakers and whistleblowers. However, nothing of value will be learned by continued pursuit of this path of "research and study".

Greenwald boldly asserts privacy matters. Fundamentally, his assertion can be expressed more powerfully, not as trades between security and privacy or good and bad behavior, but as trading privacy for the destruction of our civil society.

How ironic that those supposedly working to preserve our civil society would destroy it!

The good news is that a significant number of our citizenry has demanded and continues demanding that our government dismantle6 its secretly constructed and continuously operated mass surveillance apparatus.

Additionally, our government must continuously and transparently constrain, measure and account for all its past and future surveillance activity.

It's likely not chance that our government has begun complaining about its surveillance activity going dark.

Wonder why governments (particularly ours) find it difficult or impossible to govern transparently and without ubiquitous surveillance? Opaque and ubiquitous surveillance seems like the antithesis of freedom, not to mention optimal, good and preferred democratic governance.

Our intelligence community is secretly smothering (and smoldering) under haystacks of irrelevant data.

A significant benefit of constitutionally collecting data is that analysts are not required to spend significant time focused on the irrelevant.

Unfortunately, inefficiencies and storage costs are not the only downsides and negatives that result from our nation operating secretly undefined, unmeasured, unaccountable and unconstitutional program(s).

After every transparency event (leak) our intelligence community or government spokesperson will always assert that the "compromise" has caused "serious" (term used when transparency event involves documents classified secret) or "grave" (term used when transparency event involves documents classified top-secret) damage.

These are reactionary assertions that occur by definition of the leaked document's classification level. Asserting otherwise would be to acknowledge that the secret or top-secret document was improperly classified!

Those familiar with our classification system: will not assume
any document is properly classified; will be routinely amused by the
quantity and quality of improperly classified documents; will discount all G-Gordon-Liddy-like pronouncements of "serious" or "grave" damage, which are supported by reams of redacted pages; and will be staggered, not by the results of a transparency event, but by the sums spent on secret and opaque governance!

Kudos to our President and DOJ for obviating the traditional "spy vs spy" extrajudicial approach that has balefully prevailed among nation states—nations need not publicly protest but rather publicly present facts to a routinely convened court of law complying with common international standards.

Some proponents of partially perpetuating the "spy vs spy" extrajudicial paradigm make the illusory distinction between economic and non-economic spying—asserting the former purpose is impermissible while the later is ok?

The illusion works only if you think there exists a bright line between our government spies and our private enterprises—such a bright line does not exist.

For example, suppose our intelligence collectors physically or virtually collect an exotic piece of hardware, firmware or software—the collectors will directly or indirectly use our private enterprises to analyze and understand that hardware, firmware or software. If the collected hardware, firmware or software advances the state of art (improbable but not impossible, if you're collecting against mostly developing nations) our private enterprises will economically and non-economically exploit that advance.

A more relevant question is not whether Rogers can salvage a non-salvageable-agency, but whether our nation and its leaders can learn to govern under 21st century transparency? To date, their efforts mostly seem futilely focused on salvaging opaque governance and secrecy!

Awarded to The Washington Post for its revelation of widespread secret surveillance by the National Security Agency, marked by authoritative and insightful reports that helped the public understand how the disclosures fit into the larger framework of national security.

and

Awarded to The Guardian US for its revelation of widespread secret surveillance by the National Security Agency, helping through aggressive reporting to spark a debate about the relationship between the government and the public over issues of security and privacy.

Even the chairwoman of our Senate Intelligence [over, under or no sight?] Committee has begun expressing "shock, amazement and outrage" over our intelligence community's "off leash" or more appropriately "unleashed" behavior.

Reportedly, the "off leash" or "unleashed" behavior has been or will be referred to our Justice Department (for what?)—bleating echoes of "its never bitten before" can't be far-off?

An interesting Kabuki dance between NSA's Inglis and NPR's Inskeep—evidently NSA's new strategy is to pursue transparent secrecy.

There is much to parse, discuss and debate from the transcript (e.g.):

Inglis: "...The FISA Amendments Act that came in in 2008 essentially made it clear that no matter where you are on the planet earth, if you're a U.S. person, if you have U.S. person status, if NSA or any other foreign intelligence organization within the U.S. is going to target them, they must first get a probable cause statement from the court, the Foreign Intelligence Surveillance Court..."

Is the secret FISA court probable cause statement substituting for individualized searches of American citizens based on probable cause, specificity and a warrant?

It seems a stretch to ascribe fluctuations in corporate earnings to a "Snowden Effect"—let's ascribe corporate earnings fluctuations to an "NSA Effect" or "Secrecy and Opaque Effect", or "Panda Effect or [insert your favorite effect].

FISA court proceedings must not only be opposed they must be open and transparent! It's insufficient to assert secrecy or “operational security reasons”.

Additionally, there is no reason not to appoint, as FISA court judges, persons with advanced training in privacy, security, programming, algorithms, digital hardware and software, engineering, mathematics, etc.

Unsurprisingly, those erecting and perpetuating our opaque secret national security hydra find it difficult to articulate the benefits from the bulk collection of communications. One suspects that quantifying, measuring and monitoring other individual components of our opaque secret national security hydra would quickly demonstrate a similar lack of benefits, likely by orders of magnitudes.

Unfortunately, in the absence a transparent national security apparatus we must learn these data, after the fact, from whistle-blowers and leakers. How much better for our nation if our citizens openly discussed and debated the benefits and burdens, before the fact?

Only in fairy tale do kings bulk collect straw or hay believing that sprites can turn it in to gold for profit while relying on spies to discover the codeword, Rumpelstiltskin, to avoid any costs.

One expects a certain amount of unproved threat hyperbole from our national security apparatus—many do not expect our judiciary to parrot their hyperbole.

Admittedly, perspective and national security threats are not often difficult to simultaneously combined, but orders of magnitude more Americans die annually from shootings, suicides or flu viruses than a relatively rare "terrorists attacks"!

One wonders what gains could be achieved by repurposing our national security apparatus's capabilities and resources to solving marginally greater threats than regressing over five years of mass collected communication records for any statistically significant parameters (patterns)?

Apologists for our opaque secret national security apparatus' most recently discovered abuses should at least hold a leash attached to an empty dangling collar in their hands when making their assertions. The prop will add some comedy to an otherwise developing tragedy and obscure the reason for any subsequent laughter.

Mr. President, how can we meaningfully debate and arrive at an optimal balance for our national security apparatus in the absence of total transparency?

Are you really justifying our national security apparatus's unconstrained, unmeasured, unlawful, unconstitutional, undemocratic, unproven, unnecessary, and imbalanced ( independent psychiatrists will have to determine if some the cowboy's are unbalanced?) collection methodologies by pointing out that Russia's regime is more repressive!!?

Group participants publish 46 tepid recommendations mostly focused on adding players and functionality to an already costly and dysfunctional national security apparatus game of whack-a-mole (or find-a-needle-in-the-haystack, if you prefer).

Even if fully implemented, the group's recommendations will do little to ensure a default national security apparatus capable of effectively and transparently delivering more benefits than burdens.

Our president should publish the group's recommendations in the Federal Register for the purpose of seeking public input specifically focused on what can be subtracted (not added)3 to improve our costly and dysfunctional national security apparatus.

Well it's been slightly over a decade since King Bush the Idiot kicked-off his Global War on Terror (substantially continued by President Obama) in retaliation for the acts of a relatively few terrorists.

Since then our nation continues struggling through the Great Recession, Great Renege (pensions), Great Democracy Decline and now the Great Rein In of a nascent secret opaque Orwellian national security state apparatus.

In summary our nation has struggle through close to a decade of self-inflicted disaster! Oh, almost forgot to mention that the head spook over at our NSA, General Keith Alexander, recently informed our nation (6o Minutes) that the probability of a terrorist attack is increasing2! To borrow a recent out burst from House Speaker, John Boehner, "are you kidding me"!

Let's see if we can avoid turning our nation's decade of self-inflicted disaster in to a dozen years Great Demise! Firstly, by immediately and transparently transfiguring General Alexander's et al. vision of a nascent secret opaque Orwellian national security state apparatus in to open, transparent and constitutionally constrained tools for informing our citizenry.

When our government learns (an admittedly steep learning curve) how to govern transparently there will be nothing to leak and no leakers to prosecute!

Unfortunately, until our government climbs the learning curve some will suffer (including our nation as a whole) from the many methods, myths and diversions dreamed up to maintain and justify opaque governance.

When you're building or participating in a secret surveillance state (and they're always secret, initially) it's extraordinarily difficult to perceive the dysfunctional environment, not unlike battered spouses secretly participating in a dysfunctional environment. Only when a spouse voluntarily or involuntarily exits the dysfunctional environment or its opacity otherwise becomes transparent1 are the dysfunctional properties properly perceived.

1. Fortunately, disclosure of dysfunctional environments has become more common. However, a perpetrator rarely appreciates, acknowledges or learns from these disclosures, so it may be necessary to protect a discloser from retaliation.

2. Part 2 opens with a couple of cheap shots by career NSA Snowden Leak Task Force Coordinator, Rick Ledgett. Outsiders familiar with the paranoid and pathological environments existing within our national security apparatus will amusingly recall the asymptotic mental compartmentalization that's required for a 25 year veteran insider to criticize unusual behavior (viewing a video terminal under black felt) and stealing secrets (key to a test) for advantage!

Part 2 closes with head spook General Keith B. Alexander's statement on the increased probability of terrorism.

Between Part 2's opening and closing is a continuing NSA promo that could be titled the "Refocusing on NSA Basics, Really!". How NSA lost its focus, constraints and measures will require another James Risen tome (perhaps a well resourced joint endeavor with James Bamford!).

3. Additions simply increase the number of possible failure paths.

4. Even more substantial and significant shifts will be required to accommodate the citizenry of modern civil societies. It's not without irony that those whose information is, has been, or will be bulk collected by our government are not participating in the hearings (e.g. German Chancellor Merkel).

Perhaps, these participants must await further government transparency events?

6. As an alternative to dismantling these assets they can be entirely or partially repurposed, minus the generals (e.g. quantitative and synthetic biology, emergence, materials, spectral, and chaos etc.). Cost-benefit analyses must replace chants of "the terrorists are coming" and "God [insert your favorite verb] America".

7. Of course if our government could govern transparently there would be no espionage prosecution and thus no need for a public interest defense.

8. It can be useful to view government governance on a coercion-consent continuum with greater government coercion required to sustain greater societal imbalances.

A decaying government will ignore destabilizing societal imbalances and cite these destabilizing societal imbalances as justification for utilizing greater government coercion, thereby accelerating its further decay and eventual destruction.

9. Our government has been slow to acknowledge that opacity is primarily used as a convenient societal management tool—national security is the cover story.

10. Our government rarely, if ever treats leaks (i.e. a transparent exogenous correction stabilizer) as its failure to set up credible and meaningful endogenous self-correcting processes.

11. President Obama's putative titular successor is now designating the "first-string" players of our next "different and exceptional" government (regime?). Trump's propensity for public and unpredictable megalomaniacal eruptions has continued post-election.

The "Trump challenge" is for all Americans. Hey, on the bright-side, the 2017 inaugural could be of a presidential-elect brandishing Rodrigo Duterte-like propensities (i.e. summarily shoot those engaged in behavior you've condemned; flag burning)?

Huh..., can we begin impeachment proceedings on January 21, 2017 or must we await the shame, embarrassment, and damage to accumulate beyond repair?

Or better yet, can our Presidential Election of 2016 be annulled for improper conduct (e.g. if Trump joined Putin et al. to meddle in the Presidential Election of 2016) AND require Trump to pay for the rerun election? Our current Vice President can serve as President while the rerun election occurs to avoid President Obama serving more than two consecutive four-year terms.